Last Brief in Markhor I Suit Filed

Written By John J. Jackson III, Conservation Force Chairman & President

(posted August 2012)

We completed the last legal brief in Markhor I in July. The only thing that remains is the oral argument before the three-Judge panel in the District of Columbia in September.

This is the appellate case challenging the dismissal of the first suit to enforce the first downlisting petition filed in 1999. The lower District Court, at the Fish & Wildlife Service’s (FWS) urging, had dismissed the case as unenforceable after six years. This was despite the fact that suit was not filed because those that filed the petition to downlist were relying upon promises that it was forthcoming and were waiting in reliance upon positive representations made in that regard. The District Court had ruled that the six-year time limit was jurisdictional and could not be extended even for equitable reasons.

The second part of the case arises from the FWS denying the permits. Part two of the suit was to compel the processing of import permit applications that were as much as 10 years old. The FWS responded by processing the permits of the litigants (all denied) and then convinced the Lower Court to dismiss those claims as moot.

At the appellate level we have made a great number of arguments that the first downlisting petition was valid for more than six years after the FWS should have made a 12-month determination (it had timely made a 90-day determination). Now the Sierra Club has intervened in our favor (yes, Sierra Club, not Safari Club) to argue that the right to a 12-month downlisting determination is such a mandate from Congress that it should survive the jurisdictional challenge.

Of course, we strategically filed a second petition to downlist the markhor (Suleiman straight-horned markhor in the Torghar area of Pakistan) and have reached a settlement of Markhor III over that petition with the FWS that they will make a 12-month finding before July 31, 2012, to be reported to you next month. That was the thing to do, but now FWS is arguing the settlement moots this part of the appeal because there will be a 12-month determination under the second petition that will satisfy the first petition as well.

In regard to the failure of the FWS to process permits for 10 years, we argued that the District Court (Lower Court) should not have dismissed that claim when the FWS processed (denied) the permits because the claim asked for a declaratory judgment that the delay was illegal and for an order that permits be issued timely in the future. The FWS is arguing that the permit application claims were mooted by the processing (denying) and that the Court should not be telling the Agency how to operate by ordered “programmatic” changes of operation. We in turn are arguing an exception to mootness, which is that the chronic delays have been misbehavior that is “capable of repetition but evading review” unless the Court stops it. Of course, our line of cases have documented that the FWS will let permit applications rot for five to 10 or more years until compelled to review them. (As was the case with Mozambique and Zambia elephant, Pakistan markhor, wood bison, etc.)

We also continue to argue that the permit processing practices of the International Section of FWS, particularly the Division of Management Authority, deprive trophy owners of constitutional “due process” of law. The FWS argues that there is no fundamental right to a permit or fair treatment in permit processing.

This may all seem rather technical to readers, but it is best you know what your government is doing to you and the position they are taking on fundamental rights of fair treatment and accountability. They are not giving an inch, and they are not hunters’ friend. The fundamental problems within FWS have been exposed through the litigation. According to the FWS, they don’t have to process your permits, you have no fundamental right to fair treatment in the process and you have no protected ownership interest in your property (trophy). Think about it.

Sometimes we lament we did not file suits sooner, during prior administrations. At the same time, we know that prior administrations got us here and knew well what a fix we would be in.